Chapter 1 Evaluation Flashcards
ADVANTAGE - civil courts
Point: The case will be presided over by a qualified Judge, whether in the county court or High court. Judges are experienced, qualified lawyers who can deal with complex legal matters. They will apply established rules of evidence and procedure to ensure the case is dealt with fairly and without favouring one side or the other. When giving their decision on liability, judges provide reasoned opinions so the parties can see how the decision was reached.
Evidence: N/A
Explain: This means that using the civil courts is a fair and trusted way to deal with disputes. The judge is impartial and a decision on liability is based purely on evidence and the legal arguments put forward. \
ADVANTAGE- civil courts
Point: Reasoned judgements can be studied for accuracy of the law used by a judge to reach a decision. If there are inaccuracies, there is a clear, structured appeal route. Appeals can also be made against the amount of compensation.
Evidence: N/A
Explain: This gives parties the liberty to explore if their judgement was lawful. Having a good structured appeal route is effective as the parties can have the chance to challenge the decision and potentially bring about greater justice.
Link: This is an advantage of using the civil courts because, the right of appeal ensures that as far as possible, courts arrive at the right decision. The decisions of appellate courts are fully reasoned too.
ADVANTAGE- civil courts
Point: A judge will allocate a defended case at any early stage to the most suitable track and court. It will be case managed through the process to a court hearing to minimise delays. Both parties will know in advance, the number of witnesses allowed and the length of the hearing.
Evidence: N/A
Explain: This allows the court process to be quick and efficient. The three track system allows for cases to be dealt with quickly as each case is allocated to a track depending on the value. This adheres to Lord Woolf’s reforms which stops time wasting in the Civil Courts.
Link: =This is an advantage of using the civil courts because each case is aimed to be dealt with as soon as possible and therefore the parties will not have to wait for justice.
COUNTER: However, even with the three track system, there can be considerable delays in completing the preliminary stages of a claim. There is often a delay in setting a hearing date after these stages are completed. This means that the Civil courts have more delays then what is aimed.
ADVANTAGE- civil courts
Point: A legally binding and enforceable decision will be made by the judge. The parties are guaranteed a resolution at the end of the hearing and an enforceable remedy is guaranteed.
Evidence: N/A
Explain: This means that disputes are guaranteed to be resolved for parties. This is especially reassuring for parties who have tried other alternative dispute resolution and have failed to come to an agreement.
Link: this is an advantage of using the civil courts because with enforceable decisions cases can be dealt with for good and further disputes are less likely to arise.
DISADVANTAGE- civil courts
Point: The rule in civil cases is that the loser pays the winner’s costs as well as their own. As a result, the costs of taking a case to court can be more then the sum claimed. This is especially the case in the High Court. There is a need for lawyers to be used in complicated cases, whose time has to be paid for.
Evidence: N/A
Explain: This means that many people who can not afford representation and the costs of another parties, then they will be at a disadvantage. This makes the Civil courts to be seen as unfair, due to people being deterred because of expenses.
Link: This is a disadvantage of using the Civil Courts, as the justice system should be open to all people and if the costs are higher then the claims then there is no overall point in using the Civil Courts.
DISADVANTAGES- civil courts
Point: Even with the three- track system, there can be considerable delays in completing the preliminary stages of a claim. Once these stages are completed there are further delays in arranging a hearing date. Some complicated cases may take several years to resolve.
Evidence: N/A
Explain: These delays prevent the court system from being efficient and although Lord Woolf’s recommendation of the three- track system helps allocate a case to a track depending on value is used it does not stop delays.
Link: This is a disadvantage of using the Civil Courts because with the knowledge that their claim will be subjective to extensive delays, more people will be put of using the civil court system. Faced with ever growing delays, injured people will, more then ever , to accept low ball offers from defendants.
Counter: However, despite delays, the civil courts do allocate a defended case at an early stage, to the most suitable track and court. It will be case managed throughout the process to minimise delays.
DISADVANTAGE- civil courts
Point:a claimant can only apply to their lawyer for a no- win no- fee arrangement in personal injury claims.
Evidence: claims are usually only took if there is a 75% chance of winning
Explain: A lawyer will also only agree to such an arrangement if the claim stands a high chance of succeeding. If the lawyer decides there is a low chance of success then a claimant must fund the claim from their own resources. Claimants in other cases will have to accept responsibility for their lawyer’s fees and hope they can win the case and recover their costs from the loser, in addition to any compensation.
Link: this is a disadvantage of using the civil courts because, many people won’t be able to get a no win no fee arrangement as their claim has not got a high chance of succeeding. This makes the civil courts not accessible or fair .
DISADVANTAGE-civil courts
Point: except in small claims, it is difficult for a claimant to take a case without the assistance of a lawyer.
Evidence:N/A
Explain:This is due to the requirements of pre-action protocols, the civil procedure rules and the formal nature of hearings. Failure to observe these rules may result in the claim being dismissed. More complicated rules apply if an appeal is required.
Link: this is a disadvantage of using the civil courts because it once again makes the system in accessible to many people who can not afford representation. People cannot represent themselves as they lack the legal knowledge so only a minority can afford to take their claim to court.
ADVANTAGE- alternative dispute resolution
Point: using a method of ADR is less formal then using the courts.
Evidence: negotiation can involve just the parties themselves. In mediation and conciliation, the parties are encouraged to reach a settlement themselves. In arbitration, the parties can set the form of the process.
Explain: this makes the whole process of using a form of ADR less confrontational and complicated. This is especially a good alternative to the civil courts if business relationships are wanted to be maintained.
Link: this is an advantage of ADR as a less formal process can create a relaxed setting where a settlement can be made between the parties.
ADVANTAGE- alternative dispute resolution
Point: One advantage of ADR is that lawyers are not encouraged.
Evidence: N/A
Explain: They are not encouraged because the processes are flexible and less formal. There is no rule that the loser pays the winners costs, this will mean lower costs of the parties and less confrontation. There will not be a winner/ loser situation and the parties can continue a personal or business relationship.
Link: this is an advantage of ADR because lawyers are expensive and without the need for them more people can have their dispute resolved. Unlike the courts, people can represent themselves making it a more accessible process.
ADVANTAGE- alternative dispute resolution
Point: it is quicker and easier to arrange a resolution than going through the courts.
Evidence: N/A
Explain: if there is a hearing, likely to be in private and there will be little or no publicity to embarrass the parties
Link: this is an advantage of using ADR because using the civil court system involves delays in arranging hearings and completing preliminary stages. Claimants can quickly resolve their dispute with ADR and personal or business relationships can return to normal.
ADVANTAGE- alternative dispute resolution
Point: especially in negotiation, mediation and conciliation the decision does not have to be strictly legal.
Evidence: N/A
Explain: the decision is more likely to be based on commercial common sense and compromise.
Link: this is an advantage of using ADR because it will likely preserve the future relationship between the parties .
Counter :however , it can be argued that the decision not being strictly legal is a negative as the parties are not legally enforced to carry out the decision and if. One party wants to withdraw from the agreement they can.
DISADVANTAGE- alternative dispute resolution
Point:in all forms of ADR, except tribunals, the parties cannot be forced to engage in in the process and one of them may decide not to.
Evidence: N/A
Explain: the process will have to be abandoned and court action may have to be required to resolve the dispute, which will result in further delay and cost.
Link: this is a disadvantage of using the ADR because it relies on both parties being willing to to settle the dispute which is not always the case. Therefore using a method of ADR can be a waste of time.
Counter: however it can be argued that the fact that the parties can withdraw at any time is a good thing. This is because a decision will not be enforced on one of the parties and they can often deal with the dispute themselves.
DISADVANTAGE- alternative dispute resolution
Point: no funding is available for claimants using ADR.
Evidence:N/A
Explain: this may put an unrepresented claimant at a disadvantage in arbitration and employment tribunals, where a business employer is likely to be represented
Link: this is a disadvantage of using ADR because it makes the process unfair. One negative of using the courts is due to costs of representation and with no funding in alternative dispute resolution then it is just as unfair.
DISADVANTAGE- alternative dispute resolution
Point: there are limited rights of appeal for most forms of ADR.
Evidence: in arbitration an appeal can only be made on the grounds of a serious irregularity. With employment tribunals, an appeal can only be made if there is a point of law involved.
Explain: any appeal is likely to require a lawyer and involve more costs for a claimant.
Link: this is a disadvantage because if a party believes they have been given an unjust decision then they only have limited rights to appeal making it unlikely for their appeal to be successful.
DISADVANTAGE- alternative dispute resolution
Point: if an unexpected legal issue appears in either arbitration or an employment tribunal then an unrepresented claimant may be at a disadvantage. A non legally qualified arbitrator will not be able to resolve it.
Evidence: N/A
Explain: this is not the case in the civil courts where a qualified judge will be able to deal with complex issues of law.
Link: this is a disadvantage of ADR because using a method of it is not suitable if complex issues of law involved.
ADVANTAGES- employment tribunals
- Claims will be heard by a specialist panel
- ACAS will encourage the parties to settle the claim before a hearing
- The hearing will often be heard without public or press present. This will ensure confidentiality for both parties
4.The employee can be represented by a non- lawyer including a trade union representative. It will then be cheaper. Party’s also pay their own cost which makes it cheaper.
DISADVANTAGES - employment tribunals
1.a claim has to be issued quickly after the issue arises (three months)
2.funding is not available. An employee may be at a disadvantage against an employer who can pay for legal representation
- Appeals are limited to issues of law
4.there may be delays in setting hearing dates.
ADVANTAGE-negotiation
Point: little to no cost and there is no need for lawyers
Evidence:N/A
Explain: negotiation can be carried out in simple ways such as over the phone or merely from face to face talking. Representatives are not needed because the parties can speak for themselves.
Link: this is an advantage because many people can not afford representation but need to get their dispute resolved. Negotiation is informal and this creates a relaxed environment for the parties to reach a settlement.
ADVANTAGE- negotiation
Point: relationships between the parties are preserved.
Evidence: N/A
Explain: especially in the case of businesses they can protect their reputations. Relationships are preserved as they are simply talking through the dispute and they are not going to court which would be more confrontational.
Link: this is an advantage of negotiation because relationships can be continued in the manner before the dispute. Without going to court, the parties are less likely to become resentful.
ADVANTAGE- negotiation
Point: the parties themselves are in control
Evidence:N/A
Explain: a decision is not controlled by a third party as the parties can have full control of the process and can withdraw at any time.
Link: this is an advantage of negotiation as it is a just way of reaching a settlement, by letting the parties decide how they reach a decision.
Counter: however, it can be argued that if the parties are control then either one could believe they are right and not be will to settle. As there is no third person to control the process, the parties may be hostile towards each other.
ADVANTAGE- negotiation
Point: it can be straightforward contact between the parties.
Evidence: N/A
Explain: this means that negotiation is unlikely to be time wasting as it can be carried out quickly and informally. It also makes negotiation more accessible and adheres to lord Woolf’s changes as he wanted to encourage alternatives to the courts. Straightforward contact can be writing or over the phone.
Link: this is an advantage of negotiation because it can be carried out easily and is accessible for many people.
DISADVANTAGE- negotiation
Point: one of the parties may not be prepared to negotiate with the other
Evidence: N/A
Explain:in negotiation, for it to be effective it requires both parties to be willing to take part and wanting to reach an agreement. An existing relationship is Already required
Link: this is a disadvantage of using negotiation because if one party is un willing to to negotiate then it is near impossible to come to an agreement and therefore the process is pointless.
DISADVANTAGE- negotiation
Point: it can take a while
Evidence: N/A
Explain: negotiations can take a long time to go undergo and may result in a settlement “at the door of the court” which is a last minute settlement.
Link: this is a disadvantage because negotiation can come with delays that reduce the efficiency of the process
Counter: however it can be argued that it is good that negotiations can take place at any point throughout the dispute which could result in a good settlement
DISADVANTAGE- negotiation
Point: court proceedings may be the only way to resolve the dispute
Evidence: N/A
Explain: this defeats the whole purpose of negotiation and if using the civil courts are the only way to resolve a dispute then it will result in large expenses for representation
Link: this is a disadvantage because it can be considered to be time wasted if the party’s end up going to court after lengthy negotiations
DISADVANTAGE- negotiation
Point: one of the party’s may be hostile towards the other
Evidence: N/A
Explain: tensions can run high which does not allow for an effective decision to be made. With no third party to ease tensions and guide the process, negotiation can cause worsened relations.
Link :this is a disadvantage because party’s being hostile towards each other in negotiation will worsen relations between the parties. It will also negatively affect business relationships and relationships
ADVANTAGE- mediation
Point; cheaper then a court case
Evidence: examples include CEDR which is the centre for effective dispute resolution. Which is the main one for business disputes
Explain: this limits the cost to the parties as the costs of litigation are high in court cases due to the costs of representation
Link: this is also an advantage as it links to lord Woolf’s reforms where one of his recommendations was to encourage ADR to reduces the costs of litigation
ADVANTAGE- mediation
Point: parties are in control and can withdraw at any time
Evidence: N/A
Explain: the mediator is neutral and will not enforce a decision on any party . If the parties believe mediation is not being successful then they can withdraw
Link; this is an advantage because it means the parties are still in control and one part will not have a decision enforced on them that they don’t want
ADVANTAGE- mediation
Point: future business relationships can be maintained
Evidence: could use CEDR as it handles business disputes
Explain: if mediation is successful then parties can continue good business relations if they have done so previously.
Link: this is an advantage because reputations can also be protected as there has not been a messy, public court cases
ADVANTAGE- mediation
Point: mediation can be used by companies and families
Evidence and explain: in a family case, parties must show they have attended a mediation and information assessment meeting ( MIAM) before starting any court proceedings.
Link: this is an advantage because mediation is accessible to any kind of dispute whether that is a business one or a family matter
Counter : however if unsigned parties can end up going to court and therefore considered a waste of time
DISADVANTAGE- mediation
Point: not legally binding
Evidence: N/A
Explain: this makes mediation hard to enforce. A party may go back on a decision and there will be no consequences as the settlement was not legally binding
Link: this is a disadvantage because it relies on both parties complying with the settlement and if one doesn’t then mediation was overall unsuccessful
DISADVANTAGE- mediation
Point: one of the parties may be unwilling to take part in the process
Evidence: N/A
Explain: this makes a decision difficult to make and relies on an existing relationship for mediation to be successful, only suitable if parties can co-operate
Link: this is a disadvantage because the parties may be unable to reach a settlement and a court case will have to be used instead.
DISADVANTAGE-mediation
Point :if unsuccessful parties still end up going to court.
Evidence: N/A day can be ac
Explain: if the process id not going successfully then the parties may have no choice but to end up going to court.
Link: this is a disadvantage because it means mediation is a waste of time in some cases and parties will be faced with costly litigation
DISADVANTAGE- mediation
Point: Mediation can be a lengthy process.
Evidence: N/A
Explain: regular mediation requires time and discipline. For those with busy schedules, fitting mediation into their day can be a challenge. The time commitment required for long sessions without visible
Link: this is a disadvantage because it will make it hard to stay consistent with mediation if there are delays. In addition, when the benefits of mediation aren’t immediately apparent, people may be discouraged.
ADVANTAGE- conciliation
Point; cheaper then a court case
Evidence: N/A
Explain: this limits the cost to the parties as the costs of litigation are high in court cases due to the costs of representation
Link: this is also an advantage as it links to lord Woolf’s reforms where one of his recommendations was to encourage ADR to reduces the costs of litigation
ADVANTAGE- conciliation
Point: the parties have some control over the process by choosing the conciliator
Evidence: N/A
Explain: this means that a party will not have a decision enforced upon them. The conciliator cannot ask for evidence or call witnesses. They only suggest grounds for compromise.
Link: this is an advantage because the parties maintain control over the outcome, which increases the likelihood that both sides will be satisfied with the resolution. They can make decisions that best suits their needs and interests.
ADVANTAGE- conciliation
Point: Future business relationships can be maintained
Evidence: For example, ACAS -the advisory conciliation and arbitrary conciliation service is used in industrial disputes.
Explain: Positive relationships build trust and a good reputation in the industry.
Link: This is an advantage because maintaining business relationships supports long-term success and growth for both parties.
ADVANTAGE- conciliation
Point: speed and informality
Evidence: N/A
Explain: conciliation tends to be faster than formal litigation or arbitration,
Link: This is an advantage because since the process is informal, disputes can be resolved in a shorter time frame, saving both time and money.
DISADVANTAGE- conciliation
Point: The conciliator may force a resolution on one or both of the parties
Evidence: N/A
Explain: If a conciliator imposes a resolution, it takes away the parties’ ability to make their own decisions, which can lead to dissatisfaction or resentment. Parties may feel that the resolution doesn’t reflect their true interests or needs.
Link : This is a disadvantage because if the conciliator forces a resolution on one or both parties because it undermines the voluntary and collaborative nature of the process.
Counter: However it can be argued that it is hard for the conciliator to do this because they cannot ask for evidence or call for witnesses.
DISADVANTAGE- Conciliation
Point: The process may not bring about a decision
Evidence: N/A
Explain: if conciliation is unsuccessful, the parties will end up going to court. Conciliation is often seen as a quicker and less costly alternative to formal litigation. If it doesn’t result in a resolution, the time and resources invested by the parties and the conciliator are essentially wasted.
Link:, the inability to resolve a dispute in conciliation defeats the purpose of using a more flexible approach. It can prolong conflict, increase costs, and strain relationships, ultimately making the dispute harder to resolve in the future.
DISADVANTAGE- Conciliation
Point: The result may not be binding on one or both of the parties
Evidence: N/A
Explain: This means that the agreement reached throughout the process is not legally enforceable for one or both of the parties.
Link: This is a disadvantage because it leaves both parties in a position of vulnerability where the non- binding party may choose to not uphold the agreement. If the outcome is not binding on one party, the risk of future disputes increases because the matter may remain unresolved.
DISADVANATGE- Conciliation
Point: The conciliation process may be considered informal and not taken seriously
Evidence: N/A
Explain: If the parties view the conciliation process as informal or non-serious, they may not invest the necessary time and effort to reach a resolution. Without commitment from both sides, it is unlikely that the parties will reach a beneficial solution.
Link: this is a disadvantage because If parties perceive conciliation as ineffective or unprofessional, it can lead to a loss of trust in the alternative dispute resolution (ADR) process. This may make them less willing to engage in conciliation or other forms of ADR in the future, leading them to rely solely on litigation.
ADVANATGE - Arbitration
Point: The arbitrators decision is final and binding and can be enforced through law
Evidence: N/A
Explain: A binding decision provides a clear and final resolution to the dispute. Unlike in non-binding processes (like mediation or conciliation), where parties can choose not to comply with the outcome, arbitration ensures that the decision must be followed.
Link: This is an advantage as since the arbitration decision is binding, it reduces the risk of the parties taking the dispute to court after the fact.
ADVANATAGE- arbitration
Point: The Arbitrator will be qualified and experienced.
Evidence: N/A
Explain: A qualified and experienced arbitrator is likely to have specialised knowledge in the field relevant to the dispute. Experienced arbitrators are typically more skilled at managing the process effectively. When both parties know that the arbitrator has significant qualifications and experience, they are more likely to trust the process and the final decision.
Link: this is an advantage of arbitration because an experienced and qualified arbitrator will bring about a reliable and just settlement.
ADVANTAGE- arbitration
Point: Arbitration is cheaper then a court case
Evidence: N/A
Explain: Legal representation is not always necessary which keeps costs of litigation down. Lower costs make arbitration more accessible to a wider range of individuals and businesses, including those that might otherwise be unable to afford lengthy and expensive court cases.
Link: This is an advantage ]of arbitration because the cost-saving aspect of arbitration also reduces the stress and time commitment for the parties.
Counter: However, arbitration is still very expensive compared to other forms of ADR and legal representation and arbitrators fees must bee paid.
ADVANTAGE- arbitration
Point: Arbitration is quicker then a court case .
Evidence: N/A
Explain: Arbitration is generally less formal and complex compared to litigation. Courts often have many rules of procedure, pre-trial hearings which result in delays.
Link: This is an advantage because faster resolutions are particularly important for individuals or businesses that want to move on from the conflict as soon as possible. Arbitration’s speed ensures that both parties can resolve the dispute without having to invest an excessive amount of time, effort, or resources.
DISADAVANTAGE- arbitration
Point: The process can be formal and complicated
Evidence: N/A
Explain: : Arbitration often follows a set of rules and procedures that need to be strictly adhered to, similar to court procedures. In many cases, parties involved in arbitration hire lawyers or other legal experts to represent them, which increases the formality.
Link: This is a disadvantage because the process can become time- consuming and therefore higher costs. In addition to this, the process becomes stressful for the parties.
DISADVANTAGE- arbitration
Point: It is likely to be more expensive than other forms of ADR
Evidence: N/A
Explain: The formal procedures, legal representation, and expert arbitrators often lead to high costs. Parties involved may have to pay for arbitrator fees.
Link: This is a disadvantage because it limits the accessibility of arbitration. Parties with a lack of money and resources will not be able to settle their dispute through arbitration
Counter: however arbitration is still cheaper then a court case.
DISADVANTAGE- arbitration
Point: it is not a suitable process if there is a complicated issue of law involved
Evidence: N/A
Explain: While arbitrators are often experts in specific industries or fields, they may not always have the deep legal knowledge required to handle complex legal issues.
Link: This is a disadvantage because since arbitrators may not always have specialised legal expertise, particularly in complex legal matters, there’s a risk that they could misinterpret or incorrectly apply the law. That decision will then have the risk of being appealed from one of the parties.
DISADVANTAGE- arbitration
Point: The arbitrator has the power to make he final decision which means the parties no longer have control over the process
Evidence: N/A
Explain: Parties losing control over the process can lead to perceptions of unfairness, particularly if one party feels that the arbitrator is favouring the other party or is not taking into account their concerns.
Link: this is a disadvantage because loss of control over the arbitration process can limit flexibility, create perceptions of unfairness, and reduce the parties’ ability to shape the process in ways that might be more beneficial for their specific situation
